Bulman v. Southern Baptist Convention

103 S.E.2d 487 (1958) 248 N.C. 392

James M. BULMAN
v.
SOUTHERN BAPTIST CONVENTION.

No. 603.

Supreme Court of North Carolina.

May 21, 1958.

William W. White, Jr., Clearwater, Fla., for plaintiff.

McLendon, Brim, Holderness & Brooks, and C. T. Leonard, Jr., Greensboro, for defendant.

JOHNSON, Justice.

This appeal is predicated in the main upon assignments of error to the effect that the trial court erred in making the crucial findings of fact and conclusions of law. By Assignments Nos. 1 to 6, inclusive, the plaintiff attempts to challenge the sufficiency of the evidence to support Findings of Fact Nos. 3, 5, 6, 8, 9, and 10. By Assignments Nos. 7 to 15, inclusive, he attempts to challenge the refusal of the court to adopt nine findings tendered by him. By Assignments Nos. 16 to 22, inclusive, the plaintiff attempts to challenge separately each of the seven conclusions of law made by the court.

The foregoing assignments of error, 22 in number, are not supported by exceptions previously noted. The exceptions appear in the record under the assignments of error. This is not in compliance with our rules. See Rules 19(3) and 21, Rules of Practice in the Supreme Court, 221 N.C. 544.

The infraction of rules here presented is similar to that in Holden v. Holden, 245 N.C. 1, 95 S.E.2d 118, 122, from which we quote: "The appellant in his case on appeal undertakes to set out six assignments of error based on a like number of exceptions. However, the exceptions appear nowhere in the record except under the purported assignments of error. Such exceptions are worthless and will not be considered on appeal."

To like effect is the decision in Rigsbee v. Perkins, 242 N.C. 502, 504, 87 S.E.2d 926, 927, where it is said: "Thus it is manifest that the assignment of error on which the appeal is predicated is not supported by an exception. And the rule is that only an exception previously noted in the case on appeal will serve to present a question of law for this Court to decide. State v. Gordon, 241 N.C. 356, 85 S.E.2d 322; Moore v. Crosswell, 240 N.C. 473, 82 S.E.2d 208. The function of the assignments of error is to group and bring forward such of the exceptions previously made and noted in the case on appeal as the appellant desires to preserve and present to this Court. Suits v. Old Equity Life Ins. Co., 241 N.C. 483, 85 S.E.2d 602; Dobias v. White, 240 N.C. 680, 83 S.E.2d 785. An assignment of error, as in the case at hand, not supported by an exception comes to naught and will be disregarded."

See also Suits v. Old Equity Life Insurance Co., 241 N.C. 483, 85 S.E.2d 602, 604, where it is said:

"The appeal seems to be predicated in the main upon assignments of error to the effect that the court erred in making findings of fact Nos. 5, 13, 18 and 20. But these assignments are not supported by exceptions previously noted as required by our rules. See Rules 19(3) and 21, Rules of Practice in the Supreme Court, 221 N.C. 544.

"When it is claimed that findings of fact made by the judge are not supported by competent evidence, a litigant who would invoke the right of review must point out specifically the alleged error. This he must do by exception. The assignment of error alone will not suffice. Worsley v. S. & W. Rendering Co., 239 N.C. 547, 80 S.E.2d 467; Donnell v. Cox, 240 N.C. 259, 81 S.E.2d 664.

"The function of the assignment of errors is to group and bring forward such of the exceptions previously made and noted in the case on appeal as the appellant desires to preserve and present to the Court. Moore v. Crosswell, 240 N.C. 473, 82 S.E.2d 208; Dobias v. White, 240 N.C. 680, 83 S.E.2d 785; Rawls v. Lupton, 193 N.C. 428, 137 S.E. 175. Therefore an assignment of error not supported by an exception will be disregarded. Moore v. Crosswell, supra; Donnell v. Cox, supra; State v. Gordon, 241 N.C. 356, 85 S.E.2d 322. This rule is mandatory and will be enforced ex mero motu."

See also Putnam v. Triangle Publications, Inc., 245 N.C. 432, 96 S.E.2d 445; Moore v. Crosswell, 240 N.C. 473, 82 S.E.2d 208.

In the instant case, the only exception cognizable under our rules is the general exception to the judgment. This brings here for review the single question whether the facts found support the conclusions and judgment. It does not bring up for review "the findings of fact or the evidence upon which they are based." Hoover v. Crotts, 232 N.C. 617, 61 S.E.2d 705, 706; Bailey v. McPherson, 233 N.C. 231, 63 S.E.2d 559; Greene v. Spivey, 236 N.C. 435, 73 S.E.2d 488. It is manifest that the findings of fact support the conclusions and judgment.

The judgment below is

Affirmed.